Thursday, January 23, 2014

Who rules Selangor - Sultan, Menteri Besar or Jais?

Dr Abdul Aziz Bari

A friend who is close to the Selangor government cheekily told me that there are three “governments” in Selangor: the Sultan and his palace establishment, the menteri besar and his administration and the Selangor Islamic Religious Department (Jais, presumably he meant Mais that is above the department).

To a certain extent I think he was right. No, not because of the recent uproar following the raid conducted by Jais on the premises of the Bible Society of Malaysia in Petaling Jaya. He was quite right as his perception, whether he based it on the Constitution or otherwise, was not wrong even though it may not be accurate.

Following Jais’ controversial raid many have spoken up. Some, especially those linked with Umno-BN like MCA and Gerakan, have put the blame on Tan Sri Khalid Ibrahim, saying that as the mentri besar he has failed to protect the rights of the non-Muslims.

Three DAP lawmakers in the state assembly suggested that the law which Jais used to conduct the raid should be repealed, something which was not favoured by Pakatan Rakyat’s top brass including some DAP stalwarts.

Others have pointed out that the Sultan as a constitutional monarch must abide by the state government. Perhaps this was pointed out as Jais, surprisingly enough, said it has forgotten to inform the state government about the raid. Meanwhile, some others have raised the point that the state government should stop the funding for Jais.

I have said that the decree issued by the Sultan did not apply to non-Muslims as he is only the head of religion for the Muslims. True he is the head of state but this does not give him the authority to regulate the way non-Muslims worship: the right to religious freedom is enshrined in the Federal Constitution.

It has to be said that the Sultan does not even have the power to stop Muslims from, say, going to perform the haj in Mecca or fasting during the Ramadan.

Nonetheless, the fact remains that constitutionally the Sultan has both Mais and Jais under his authority. Mais is the religious council handpicked by the Sultan to assist him in carrying out his functions as head of religion in Selangor.

Jais is the department which carries out the routine and mundane administration of religion like supervising the use of mosque, collection of tithes and so on. Under the Constitution, the Sultan is not bound by the advice of the government. This is stated point blank in the Federal Constitution, in the Eighth Schedule. Some may point out all the amendments made by the Mahathir administration way back in late 1980s and mid-1990s.

I have to say that most of them are legally questionable. And given that Umno-BN is now dependent on the palace, the former premier might have regretted what he had done to the rulers in those years.

In light of the above constitutional set-up, what was said by Mais chairman Datuk Seri Mohamed Adzib Isa on Jan 9 was correct. While Jais may have contravened the Federal Constitution it was nonetheless right not to inform the menteri besar as the latter is not its superior.

This is similar to what happened in Perak sometime before Umno-BN succeeded in creating havoc within the state administration: the Perak religious department head ignored the then Menteri Besar Datuk Seri Mohamed Nizar Jamaluddin, saying that he was responsible to the Sultan of Perak.

The point I want to make here is that it is wrong to blame Khalid because the religious establishment is outside of his control. To my mind this is even the case in the United Kingdom where the Sovereign is the Supreme Governor of the Church of England.

The position of the menteri besar is even weaker when one looks at the controversy surrounding the appointment of the Selangor state secretary in early 2010. It would be recalled that Khalid was even in the dark over the shortlisted candidate for the number one man in his own administration.

The Sultan told him that he no longer had the power as it was taken away by the Mahathir amendment. Curiously the Sultan seemed to be fine with that.

States like Selangor and Penang, unlike Kelantan, Kedah, Johor or Terenggannu, do not have their own civil service and have to rely on PTD (diplomatic and administrative) officers whose loyalty lies with Putrajaya.

With that big picture in mind, the solution is obviously not a piecemeal one, such as the one proposed by the over-ambitious and perhaps naïve three Selangor DAP lawmakers.

The solution lies in the political arena, by capturing Putrajaya. By so doing all the provisions may be changed and the way the palace exercises its powers too will follow suit.